<continued...>

Used in Biotechnical Research: Why a Source Shouldn't Share in the Profits, 64 Notre Dame L.Rev. 628, 644 (1989) (National Organ Transplant Act's ban on the sale of "organs" should be extended to cover "tissues" as well). In favor of permitting payment to encourage organ donation are Andrews, My Body, My Property, Hastings Center Rep., Oct. 1986, at 28; Cohen, Increasing the Supply of Transplant Organs: The Virtues of a Futures Market, 58 Geo.Wash.L.Rev. 1, 2 (1989); Note, The Sale of Human Body Parts, 72 Mich.L.Rev. 1182, 1264 (1974) [hereinafter Note, Sale of Human Body Parts] (suggesting a market in organs as a preferable alternative to restricting consent as a means of increasing the supply of organs for transplant).
Taking a mixed view are J. Swerdlow, supra note 9, at 20 (finding no convincing evidence to support allowing sales but suggesting experiments to test the efficiency of a limited payment scheme); Dukeminier, supra note 2, at 865-66 (generally opposing widespread compensation for organs but advocating routine autopsy and presumed consent as a means of increasing organ supply); Silver, supra note 2, at 703 ("It is not here contended that an organ market is inherently bad, only that, in comparison with an organ draft, it is an inferior solution . . . .").
The implications of a ban on organ sales as they relate to the existence of property rights will be discussed further in Part II, infra notes 73-75, 109-14 and accompanying text.

[FN30]. UAGA(1968) § 7(d) ("The provisions of this Act are subject to the laws of this state prescribing powers and duties with respect to autopsies.").
These autopsy laws generally authorized the coroner or state medical examiner to perform an autopsy to ascertain the cause of death from an accident or criminal activity or occurring under suspicious circumstances. See, e.g., Grad v. Kaasa, 68 N.C.App. 128, 131, 314 S.E.2d 755, 758 (1984) (deaths from "homicide, suicide, trauma, accident, disaster, violence, unknown, unnatural or suspicious circumstances, in police custody, jail or prison, by poison or suspected poisoning, suggesting possible public health hazard, during surgical or anesthetic procedures, sudden deaths not reasonably related to previous known diseases and deaths without medical attendance" would justify an autopsy if "both advisable and in the public interest"); Md. Health-Gen. Code Ann. §§ 5-309 to -310 (Supp.1989) (deaths occurring: by violence; by suicide; by casualty; suddenly; or in any suspicious or unusual manner. Autopsy at the medical examiner's discretion in such cases.).

[FN31]. See Dukeminier, supra note 2, at 814-15; Note, The Organ Supply Dilemma: Acute Responses to a Chronic Shortage, 20 Colum.J.L. & Soc.Probs. 363, 365-66; see also J. Swerdlow, supra note 9, at 11-15 (tracing the rising success in transplants and the current shortages of virtually all transplantable body parts); Hansmann, The Economics and Ethics of Markets for Human Organs, in Organ Transplant Policy: Issues and Prospects 57 (1989) ( "Recent advances in the technology for transplanting human organs have led to a large increase in the demand for suitable organs. As a consequence, demand now considerably exceeds supply.").

[FN32]. Dukeminier, supra note 2, at 825-31.

[FN33]. See Sadler, Sadler & Stason, supra note 19.

[FN34]. "Coroner" should be read to include both coroners and medical examiners.

[FN35]. State laws falling generally into the presumed consent category include Ark. Code Ann. § 12-12-320 (1987) (pituitary gland); Cal. Gov't Code §§ 27491.46-.47 (West 1988) (pituitary & corneas); Colo.Rev.Stat. § 30-10-621 (1986) (pituitary); Conn.Gen.Stat.Ann. § 19a-281 (West 1986) (pituitary & corneas); Del. Code Ann. tit. 29, § 4712 (Supp.1988) (corneas); Fla.Stat.Ann. § 732.9185 (West Supp.1989) (corneas); Ga. Code Ann. § 31-23-6 (1985) (eyes and corneas); Ky.Rev.Stat.Ann. § 311.187 (Michie Supp.1988) (corneas); Md.Est. & Trusts Code Ann. § 4-509.1 (Supp.1989) (corneas); Mich.Comp.Laws Ann. § 333.10202 (1989) (corneas); Mo.Ann.Stat. § 58.770 (Vernon 1989) (pituitary); N.C.Gen.Stat. § 130A- 391 (1989) (corneas); Ohio Rev. Code Ann. § 2108.60 (Baldwin 1987) (corneas); Okla.Stat.Ann. tit. 63, § 944.1 (West Supp.1990) (pituitary); Tenn. Code Ann. § 68-30-204 (Supp.1989) (corneas); Tex. Health & Safety Code Ann. § 693.012 (Vernon pamphlet 1990) (corneas); W.Va. Code § 16-19-3a (1985) (corneas). The pituitary removal statutes may have less significance in the future as synthetic versions of human growth hormone become available. See Schmeck, Synthetic Growth Hormone Cleared, N.Y. Times, Oct. 19, 1985, at 7, col. 1. The past contamination of some batches of natural hormone with the virus responsible for Creutzfeldt-Jakob disease should provide additional incentive for a transition away from human sources. See id.
With minor variations the statutes follow the pattern described in the text. The Michigan statute with respect to the removal of corneas is illustrative:
In any case in which an autopsy is to be done by a county medical examiner . . . the cornea of the deceased person may be removed . . . only under the following circumstances:
(a) An autopsy has already been authorized by the county medical examiner.
(b) The county medical examiner does not have knowledge of an objection by the next of kin of the decedent to the removal of the cornea.
(c) The removal of the cornea will not interfere with the course of any subsequent investigation or autopsy or alter post-mortem facial appearance.
Mich.Comp. Laws Ann. § 333.10202 (Supp.1989)
Looking at the statute literally the medical examiner may remove the cornea even though she has knowledge of the decedent's objection. Taken in the context of the law's earlier donation provisions, however, one would suspect that this was an oversight. Courts would most likely construe this to prevent removal of the corneas if there is knowledge of objection by either the decedent or the next of kin.
The Michigan Attorney General has opined that this law requires substantial efforts to obtain consent prior to removal. Op. Att'y Gen. 6369 (1986). The one Michigan court to confront the issue, however, has read the statute as it is written. Tillman v. Detroit Receiving Hosp., 360 N.W.2d 275, 278 (Mich.Ct.App. 1984).

[FN36]. Such a requirement can be characterized as an "opt-out" provision, setting a presumption of consent under certain conditions but allowing the deceased or the next of kin to refuse donation by making their objection known.

[FN37]. See, e.g., Mich.Comp. Laws Ann. § 333.1203 (Supp.1989).
While most laws adopted in the United States limited the presumed consent approach to bodies under the authority of the coroner, other countries have taken a more comprehensive approach and extend presumed consent to all bodies. See, e.g., J. Swerdlow, supra note 9, at 19 ("More than a dozen countries . . . have adopted 'presumed-consent' laws, under which everyone is designated a donor unless they register their refusal.")

[FN38]. Cal. Gov't Code § 27491.45(a) (West 1988) (coroner may retain tissues removed at autopsy for the advancement of science); Haw.Rev.Stat.Ann. § 841-14 (1988) (coroner may retain tissues removed at autopsy for science, teaching, or therapy; provision is independent of Hawaii's UAGA and purports to override conflicting laws); Ohio Rev. Code Ann. § 2108.53 (Baldwin 1987)(pituitary may be removed by coroner regardless of consent except where it is already the object of an anatomical gift or an objection is based upon the tenets of a well-recognized religion); Laws of P.R.Ann.tit. 18, § 731g (1989)(medical examiner may donate any part; no mention of consent at all); Vt.Stat.Ann.titl. 18, § 150 (Supp.1989)(pituitary may be removed by medical examiner regardless of consent except where objection is based on religious beliefs).

[FN39]. See, e.g., UAGA(1987) § 4. The UAGA(1987) applies to all organs, not just corneas. Section 4(a) permits such removal only for the purposes of transplant or therapy and where the coroner has received a request for the part from an appropriate recipient. Section 4(a)(2) adds the further requirement that the official make "a reasonable effort, taking into account the useful life of the part, to locate and examine the decedent's medical records" and to inform the appropriate next of kin so that they may make their desires on the matter known. Where the coroner has knowledge of an objection to the removal of a part, that objection takes priority and no removal is permitted.
State laws in this group include Ariz.Rev.Stat.Ann. §§ 36-851 to -852 (1986 & Supp.1989)(corneas; diligent efforts); Ark.Stat.Ann. § 20-17-604 (Supp.1989)(all parts); Cal. Health & Safety Code § 7151.5 (West Supp.1990)(all organs and pacemakers); Colo.Rev.Stat. § 30-10-620 (1986)(corneas); Haw.Rev.Stat.Ann. § 327-4 (1988)(all parts); Idaho Code § 39-3405 (Supp.1989)(all parts); Ill.Ann.Stat.ch. 110 1/2, ¶¶ 351-354 (Smith-Hurd Supp.1989)(corneas); La.Rev.Stat.Ann. §§ 17:2354.1-3, 33:1565 (West 1982, 1988 & Supp.1989)(eyes, kidneys, heart, lungs, liver, soft tissue, and bone; good faith efforts); Md.Est. & Trusts Code Ann. § 4- 509 (Supp.1989)(internal organs); Mass.Ann. Laws ch. 113, § 14 (Law.Co- op.Supp.1989)(corneas; good faith efforts); Miss. Code Ann. § 41-61-71 (Supp.1989)(all parts); Mont. Code Ann. § 72-17-215 (1989)(all parts); N.D.Cent. Code § 23-06.2-04 (Supp.1989)(all parts); R.I. Gen. Laws § 23- 18.6-4 (1989)(all parts); Tex. Health & Safety Code Ann. §§ 693.001-.003 (Vernon pamphlet 1990)(nonvisceral organs); Utah Code Ann. § 26-4-23 (1989)(all parts); Wash.Rev. Code Ann. § 68.50.280 (Supp.1989)(corneas).
The Arkansas and California laws are actually variants of this category in that they apply not just to coroners but to hospitals in general. This is closer to the model used in other countries and avoids the issue of creating an exception that applies exclusively to the government. The implications of this variation on the property issue, as well as on the constitutional questions, are discussed infra notes 65 & 94.

[FN40]. It has been suggested that the change is not particularly significant since a similar rule could be implied from the original structure of the UAGA(1968). See Quay, Utilizing the Bodies of the Dead, 28 St. Louis U.L.J. 889, 894-95 (1984)(reversion of decision-making authority to any person authorized to dispose of the body whenever relatives in a prior category are unavailable establishes an unwarranted presumption of consent).
Professor Quay actually goes one step further and argues that allowing the next of kin to donate in the absence of knowledge of an objection by decedent is an inappropriate presumption of consent and violates the decedent's right to a decent burial. Id. at 920.

[FN41]. See, e.g., Ill.Rev.Stat. ch. 110 1/2, ¶¶ 751-756 (Smith-Hurd Supp.1989). These "required request" provisions were intended to overcome the reluctance of many doctors to ask the next of kin for consent, even when they are available, for fear of sounding crass and insensitive. See note, supra note 31, at 369-70.

[FN42]. The laws falling into this final category include Ala. Code §§ 22-19-40 to -44 (1984 & Supp.1989); Alaska Stat. §§ 13.50.010-.090 (1985); D.C. Code Ann. § 2-1605 (1988); Ind. Code Ann. §§ 29-2-16-1 to - 10 (Burns Supp.1989); Iowa Code Ann. §§ 142A.1-.8 (1989); Kan.Stat.Ann. §§ 65-3209 to -3218 (1985 & Supp.1987); Me.Rev.Stat.Ann.tit. 22, §§ 2901-2910 (1980 & Supp.1989); Minn.Stat.Ann. §§ 525.921-.94 (West 1975 & Supp.1990); Neb.Rev.Stat. § 71-480 to -4813 (1986); Nev.Rev.Stat.Ann. §§ 451.500-.590 (Michie 1986 & Supp.1989); N.H.Rev.Stat.Ann. §§ 291-A:1-9 (1987 & Supp.1989); N.J.Stat.Ann. §§ 26:6-57 to -65 (West 1987 & Supp.1989); N.M.Stat.Ann. §§ 24-6-1 to - 11 (1986 & Supp.1989); N.Y.Pub. Health Law § 4300-08 (McKinney 1985 & Supp.1990); Or.Rev.Stat. §§ 97.250-.300 (1989); 20. Pa.Cons.Stat.Ann. §§ 8601-08 (Purdon 1975 & Supp.1989); S.C. Code Ann. §§ 44-43-310 to -400 (Law Co-op. 1985 & Supp.1989); S.D. Codified Laws Ann. §§ 34-26-20 to -41 (1986); Va. Code Ann. §§ 32.1-289 to -297.1 (1985 & Supp.1989); Wis.Stat.Ann. § 157.06 (West 1989); Wyo.Stat. § 35- 5.101 to -112 (1988). In fact, most state laws fall into this category with regard to organs or tissues other than those specifically covered by presumed consent or reasonable efforts provisions.

[FN43]. See, e.g., D.C. Code Ann. § 2-1509 (1988); see also Pub.L. No. 99- 509, § 9318, 100 Stat. 2009 (1986)(codified at 42 U.S.C. § 1320b-8 (West Supp.1989)(requiring hospitals, in order to be eligible for Medicaid/Medicare, to establish a protocol designed to make families aware of their option to donate).

[FN44]. State v. Powell, 497 So.2d 1188 (Fla. 1986), cert. denied, 481 U.S. 1059 (1987); Georgia Lions Eye Bank v. Lavant, 255 Ga. 60, 335 S.E.2d 127 (1985); Tillman v. Detroit Receiving Hosp., 360 N.W.2d 275 (Mich.Ct.App. 1984).

[FN45]. 497 So.2d 1188 (Fla. 1986), cert. denied, 481 U.S. 1059 (1987).

[FN46]. Id. at 1190.

[FN47]. The court reviewed the purposes of the presumed consent law and declared it to be a reasonable means of achieving a "permissible legislative objective of providing sight to many of Florida's blind citizens." Id. at 1191. The court also noted that the intrusion of removing the decedent's corneas, by comparison to the autopsy, was "infinitesimally small." Id.
While this latter observation was not relied upon by the court in reaching its decision, it is certain to have colored the court's assessment of the case. Such concerns, though relevant in the subsequent balancing of interests, should not be used to determine the threshold issue of whether a property interest initially exists. The Constitution does not distinguish between the law student's old Datsun and the lawyer's new Porsche at such an early stage. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 436-37 (1982) ( "constitutional protection for the rights of private property cannot be made to depend on the size of the area permanently occupied").

[FN48]. 497 So. 2d at 1191-92. The court cited numerous authorities for the proposition that the next of kin have only a limited right to possess for the purpose of burial as opposed to a property right. Noting a number of differences between the rights relative to a dead body and the rights normally associated with more fungible and commercial forms of property, the next of kin were found to have a mere right to bring an action in tort, not a property right. Id. at 1192. This is a rather curious way of avoiding the question since the right to bring an action in tort tells nothing of the nature of the underlying interest that has been violated. Compare Prosser & Keeton on The law of Torts § 15 (W. Keeton 5th ed. 1984) (conversion and trespass) with id. § 12 (infliction of mental distress).

[FN49]. 497 So. 2d at 1193. In closing, the majority noted that an issue of this complexity involving the balancing of interests ought to be handled by the legislature. Id. at 1194.

[FN50]. Id. at 1195 (Shaw, J., dissenting) ("[S]ince time immemorial it has been the duty and the right of the next of kin to take control, possession, and custody of the body and remains of a deceased family member . . . . [Such common law rights should not] be narrowly construed.").

[FN51]. In Georgia Lions Eye Bank v. Lavant, 255 Ga. 60, 335 S.E.2d 127 (1985), the parents of an infant who had died of Sudden Infant Death Syndrome sued the eye bank that had been authorized by the coroner to remove corneal tissue during an autopsy. The lower court held in favor of the parents, finding that the statute authorizing removal was "violative of due process in that it deprives a person of a property right in the corpse of his next-of-kin, and fails to provide notice and an opportunity to object." Id. at 60, 335 S.E.2d at 128. The Georgia Supreme Court reversed, holding that there was no "constitutionally protected right in a decedent's body." Id. at 61, 355 S.E.2d at 128. The court held that while at common law there existed a quasi- property right in a dead body, this right was not of constitutional significance. Id.
In Tillman v. Detroit Receiving Hosp., 360 N.W.2d 275 (Mich. Ct. App. 1984), the complaint alleged that the statute authorizing removal of corneal tissue without consent was an unconstitutional invasion of the right of privacy. While Michigan law recognized a common law right of the next of kin to bury the deceased without mutilation, such a right was not considered to be of constitutional dimension. Id. at 277. The court stated that whatever constitutional right of privacy may exist with respect to the integrity of the body, such a right is "a personal one [that] ends with the death of the person to whom it is of value." Id. The Court also stated in dicta that there was no property right in a dead body, though this issue does not appear to have been raised below or on appeal. Id. (citing Deeg v. Detroit, 345 Mich. 371, 375, 76 N.W.2d 16, 19 (1956)).

[FN52]. If the government is permitted to make such exceptions to otherwise general rules, then virtually no action could be characterized as abrogating a property right. For example, the government could merely pass a law that ownership rights in land exist except as against the government, thus placing any future appropriation beyond the reach of the Constitution. When evaluating a governmental interference with property rights, those rights must necessarily be determined from an external vantage point. See infra note 94.

[FN53]. 249 Cal. Rptr. 494 (Ct. App. 1988).

[FN54]. This form of therapy is standard for patients with hairy cell leukemia as it helps normalize the white blood cell count and alleviate some of the symptoms, though it does not cure the disease. Stone, Cells for Sale, Discover, Aug., 1988, at 34.

[FN55]. "'The foundation for the action of conversion . . . rests upon the unwarranted interference by defendant with the dominion over the property of the plaintiff from which injury to the latter results."' Moore, 249 Cal. Rptr. at 503 (emphasis deleted) (quoting Poggi v. Scott, 167 Cal. 372, 375, 139 P. 815, 816 (1914)). See generally Prosser and Keeton on the Law of Torts, supra note 48, § 15 (discussing the "highly technical" rules of conversion).

[FN56]. 249 Cal. Rptr. at 503 ("plaintiff's allegation of a property right in his own tissue is sufficient as a matter of law"). The case was then remanded for trial. The ruling is currently on appeal to the California Supreme Court.

[FN57]. Id. at 504.

[FN58]. Id. at 505. One could interpret the court's statement here to suggest that there is a property right in the living body only. Given the court's emphasis on the public health concerns as the factor distinguishing dead bodies, however, there is no reason why this concern would deny the existence of a post-mortem property interest.

[FN59]. Id. Among the cases cited include Venner v. State, 30 Md.App. 599, 354 A.2d 483 (Ct.Spec.App. 1976), aff'd, 279 Md. 47, 367 A.2d 949, cert. denied, 431 U.S. 932 (1977), involving an illegal police seizure of narcotics-filled balloons found in the defendant's feces. The Maryland court acknowledged that "[i]t is not unknown for a person to assert a continuing right of ownership, dominion, or control, for good reason or for no reason, over such things as excrement, fluid waste, secretions, hair, fingernails, toenails, blood, and organs or other [separated] parts of the body." Id. at 626, 354 A.2d at 498 (footnote omitted). The Moore court also analogized to the requirement of consent for medical treatment, citing Justice (then Judge) Cardozo's famous epigram that "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body." 249 Cal. Rptr. at 505 (quoting Schloendorff v. Society of the N.Y. Hosp., 211 N.Y. 125, 129, 105 N.E. 92, 93 (1914)). Other examples cited by the court included the "quasi property right" over a dead body recognized in the next of kin, the right to control disposition of the remains found in California's version of the UAGA, the defendant's own ironic claim of a property interest in the cells, and finally the property right in an individual's name, face and likeness. 249 Cal. Rptr. at 505-08.

[FN60]. 249 Cal. Rptr. at 533-34 (George, J., dissenting).

[FN61]. Id. at 535.

[FN62]. C. Porter, My Heart Belongs to Daddy (1938).

[FN63]. Property is protected against both deprivation without due process and taking for public use without just compensation. Liberty only receives due process protection. U.S. Const. amends. V, XIV.
For a suggestion that too much is made of this difference, see Lynch v. Household Fin. Corp., 405 U.S. 538, 552 (1972) (Stewart, J.) ("[T]he dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a 'personal' right . . . .").

[FN64]. By taking a broad view of what is related to the body, a number of rights may be included that may eventually fall outside the category of "property rights." At this stage, however, it is better to be overinclusive because the eventual differentiation of liberty rights from property rights will serve to clarify those two categories as they relate to the body.

[FN65]. Government action which alters or abolishes a common-law right does not necessarily violate the fifth or fourteenth amendment since there is generally no property right in a common-law rule itself. See Munn v. Illinois, 94 U.S. 113, 134 (1876). But see Hodel v. Irving, 481 U.S. 704, 716-17 (1987) (virtual total abolition of right to pass property through descent and devise held a taking). In contrast, government action which conflicts with a generally recognized right, for example taking possession of a strip of private property in order to build a highway, is typically subject to fifth amendment scrutiny. It therefore is important to determine whether it is the general rule of conduct that has been changed or merely an exception created exempting the government from an otherwise applicable rule. A logical approach would have the existence of a right determined by reference to third parties, not the government, since it is the propriety of the government's action that is being evaluated in the first place.

[FN66]. See, e.g., Spiegel v. Evergreen Cemetery Co., 117 N.J.L. 90, 93, 186 A. 585, 586 (1936) ("[I]t is now the prevailing rule . . . that the right to bury the dead and preserve the remains is a quasi right in property . . . ."); In re Johnson, 94 N.M. 491, 494, 612 P.2d 1302, 1305 (1980) (the state recognizes "a quasi-property right in a dead body which vests in the nearest relative of the deceased"); see also Note, supra note 16, at 225-27 (surveying common law's treatment of property rights in dead bodies).
The common-law position in some states makes the rights of the next of kin subservient to any disposition directed by the decedent prior to death. See, e.g., In re Estate of Moyer, 577 P.2d 108, 110 (Utah 1978) (person's disposition of his body is "binding after his death, so long as that is done within the limits of reason and decency").

[FN67]. See, e.g., Scarpaci v. Milwaukee County, 96 Wis. 2d 663, 672, 292 N.W.2d 816, 820 (1980) (though arguing that this is a personal, and not a property, right); Grad v. Kaasa, 68 N.C.App. 128, 130, 314 S.E.2d 755, 758 (cause of action for "wrongful autopsy" arising from quasi-property right of next of kin), rev'd on other grounds, 312 N.C. 310, 321 S.E.2d 888 (1984).

[FN68]. See infra note 106.

[FN69]. See, e.g., Dougherty v. Mercantile-Safe Deposit & Trust Co., 282 Md. 617, 620, 387 A.2d 244, 246 (1978).

[FN70]. See, e.g., Estate of Moyer, 577 P.2d at 110 ("laws relating to wills and the descent of property were not intended to relate to the body of a deceased").

[FN71]. See, e.g., UAGA (1987) § 2 (authorizing individuals to direct the post-mortem disposition of their bodies).

[FN72]. Estate of Moyer, 577 P.2d at 110 n.4 ("That our legislature has recognized that a person has property rights in his body and can so dispose of his organs, see Anatomical Gift Act, U.C.A. 1953, Sec. 26-26-1 et seq."). The Utah Anatomical Gift Act is currently codified at Utah Code Ann. §§ 26- 28-1 to -8 (1989 & Supp.1989).

[FN73]. Pub.L. No. 98-507, Title III, § 301, 98 Stat. 2346 (1984) (codified at 42 U.S.C. § 274e (Supp.V. 1987)) ("unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation"). Violation carries a maximum penalty of five years and a $50,000 fine. 42 U.S.C. § 247e.
This statute, as well as its state law counterparts, infra note 74, apply equally to organs derived from live or dead bodies.

[FN74]. See, e.g., Mich.Comp. Laws Ann. § 333.10204 (West 1985); N.Y. Pub. Health Law § 4307 (McKinney 1985); Va. Code Ann. § 32.1-289.1 (1985); see also Note, Regulating the Sale of Human Organs, 71 Va.L.Rev. 1015, 1022- 29 (1985) (analyzing federal and state restrictions on sale of organs for transplant).

[FN75]. One commentary, for example, appears to assume that the ban covers all sales of human organs. Note, supra note 29, at 644 ("The Act currently defines 'human organ' and then prohibits the sale of anything that has been included within that definition."). By their terms, however, the statutes in question forbid only sales for transplantation and therapy. In light of the rather clear authorization for donation for research and education, one could conclude that sales for these non-therapeutic purposes are permitted. Scientists in practice have been buying and selling human tissues for research apparently without interference from these statutes. See Nat'l Inst. Gen. Medical Science, 1988/1989 Catalog of Cell Lines, Oct. 1988, at iii, 3 ($60 per flask of cells; options include cells from skin and lung biopsies). Some state laws are more restrictive than the federal law, however. See, e.g., Va. Code Ann. § 32.1-289.1 (1984) (banning sale of body parts "for any reason").

[FN76]. See, e.g., Va. Code Ann. § 32.1-289.1 (1985) (exempting hair, blood and other self-replicating body fluids from a general prohibition on organ sales).
While many jurisdictions have classified the transfer of blood or other human tissue as a service rather than a sale, this position does not conflict with the notion that human tissue is property. In the leading case on the distinction between sale and service, Perlmutter v. Beth David Hosp., 308 N.Y. 100, 123 N.E.2d 792 (1954), Judge Fuld drew an analogy to "a contract to paint a picture that has been held to be a contract for work, labor and services rather than a sale, although the title to the canvas is actually transferred to the customer." Id. at 105, 123 N.E.2d at 794 (citations omitted). This is because a service was the predominant element in the transaction, and would be true even if a specific portion of the price were allocated to the physical materials.
The underlying motivation of the service characterization in Perlmutter, to avoid the application of strict product liability if blood transfers were treated as sales, id. at 106-07, 123 N.E.2d at 795, also weighs against reading this rule as a denial that blood is property.

[FN77]. See, e.g., Matthews, supra note 5, at 223-25 (discussing English cases upholding convictions for theft of blood, urine and hair).

[FN78]. As to the value of a lock of hair, see Dickens, The Control of Living Body Materials, 27 U. Toronto L.J. 142, 163 & n.110 (1977) ("A lock of the poet Byron's hair was sold in 1970 for <<PoundsSterling>> 320 (about $750).").

[FN79]. The hair and jawbone examples do involve situations where the original owner is dead. An interesting situation would arise where a brain dead person is still on a cardiopulmonary support system and a researcher sought to purchase some bodily fluid of the deceased. Cf. La Puma, Discovery & Disquiet: Research on the Brain Dead, 109 Ann. Internal Med. 606 (1988) (raising ethical concerns about proper procedures when experimenting on the brain dead).

[FN80]. 249 Cal.Rptr. 494 (Cal.Ct.App. 1988); see supra notes 53-61 and accompanying text.

[FN81]. Although Moore involved a living body, it is still analogous. A cadaver is merely a physical object that was once closely intertwined with a conscious entity (person). The same is true of a severed body part. That both are biological material that was once part of a "person" should make the rights in each roughly equivalent. The similarity becomes clearer when thinking in terms of smaller parts of a cadaver, or larger parts severed from a live body (i.e., both legs severed in an accident). See Browning v. Norton-Children's Hosp., 504 S.W.2d 713 (Ky. 1974) (amputated leg incinerated rather than buried).
What distinguishes these two cases from the case of rights relative to an intact live body is the severed nexus between the physical tissue and the person. This distinction is given further treatment at infra notes 123-28 and accompanying text.

[FN82]. While this Note is predominately concerned with rights relative to dead bodies, there is necessarily some overlap with rights relative to living bodies. Since property rights are viewed as surviving the death of their owner, a corollary to this seems to be that any such rights in a dead body also exist prior to death, though perhaps in a somewhat modified form. The interplay between rights in a live body and rights in a dead one will be explored further infra notes 123-28 and accompanying text.

[FN83]. U.S. Const. amend. XIII ("except as a punishment for crime").

[FN84]. See Model Penal Code § 212.2 (1962) (felonious restraint); id. § 212.3 (false imprisonment); Restatement (Second) of Torts §§ 35-42 (1964) (false imprisonment); see also Commonwealth v. Hughes, 399 A.2d 694 (Pa.Super.Ct. 1979) (conviction for kidnapping); U.S. Const. amend. IV (seizure).
Whether false imprisonment is truly concerned with possession of the body per se is an open question, however, given the role that the consciousness of the victim often plays in proving the tort. Compare Parvi v. City of Kingston, 41 N.Y.2d 553, 556-57, 362 N.E.2d 960, 963, 394 N.Y.S.2d 161, 163 (1977) ( "false imprisonment, as a dignitary tort, is not suffered unless its victim knows of the dignitary invasion") and Restatement (Second) of Torts § 42 (1964) (same) with Prosser, False Imprisonment: Consciousness of Confinement, 55 Colum.L.Rev. 847, 850 (1955) (collecting cases and arguing that "a tort of real gravity has occurred" where persons of diminished capacity for awareness are imprisoned without consciously knowing it).

[FN85]. E. Farnsworth, Contracts 836 (1982) (reluctance to require specific performance of personal service contracts based in part on the "undersireability, in some instances of imposing what might seem like involuntary servitude").
While the right not to be prevented from engaging in some form of gainful employment (though not in any specific job) is nowhere explicitly recognized in the Constitution, it seems that any attempt to forbid a person from all employment would run afoul of the due process or equal protection clause. Even under a rational basis standard it is unlikely that such a sweeping limitation on a person's ability to work would be sustained. In this sense, the permissible economic restrictions on employment seem to parallel the permissible range of regulation of property where a complete restriction on use would constitute a taking even though a partial, but economically substantial, restriction is permissible. See Penn Cent.Transp.Co. v. New York City, 438 U.S. 104 (1978).

[FN86]. See Schloendorff v. Society of N.Y. Hosp., 211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914); Model Penal Code § 211.1(1)(a) (1962) (assault includes bodily injury to another); Restatement (Second) of Torts § 13 (1964) (harmful contact); id. § 18 (offensive contact); see also Model Penal Code § 213.1 (rape); id. § 213.4 (sexual assault). But cf. Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex. 1967) (action for battery sustained for plate snatched from person's hand).

[FN87]. See, e.g., Ga. Code Ann. § 16-6-9 (1988) (prostitution; id. § 16- 6-2 (sodomy).

[FN88]. See, e.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905) (upholding compulsory smallpox vaccination); In re A.C., 533 A.2d 611 (D.C. 1987) (upholding a forced caesarean), reh'g granted en banc, 539 A.2d 203 (D.C. 1988); L. Tribe, American Constitutional Law § 15-10 (2d ed. 1988) ("Government Control Over the Body: Decisions About Birth and Babies").

[FN89]. 408 U.S. 564 (1972).

[FN90]. Id. at 577.

[FN91]. See Monaghan, Of "Liberty" and "Property", 62 Cornell L.Rev. 405, 435 (1977) ("The difference between the existence of an interest--a matter of state law--and its significance--a matter of federal law--is firmly established in other areas of law."). Property can also arise from other sources external to the Constitution, such as federal statutory law. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 332 (1976) (federal statutory right to social security disability benefits is a property interest under due process clause).

[FN92]. Goldberg v. Kelly, 397 U.S. 254 (1970) (welfare benefits constitute property requiring a hearing prior to termination).

[FN93]. Mathews, 424 U.S. at 332.

[FN94]. Monaghan, supra note 91, at 440, illustrates this with the example of a state motor vehicle statute that "invested automobiles with all the attributes of property as that term is generally understood" but provided that those rights would be ineffective as against the state and subject to confiscation. While not "property" according to state law, Monaghan concludes that "surely the Supreme Court . . . would conclude that the owner's interest had sufficient attributes of 'property' at least to implicate the due process clause." Id.
That human body parts are in a somewhat analogous position, being protected against all except the government, is demonstrated supra notes 28, 34-37, and accompanying text.

[FN95]. See, e.g., Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982) ("The hallmark of property . . . is an individual entitlement grounded in state law, which cannot be removed except 'for cause.' Once that characteristic is found, the types of interests protected as 'property' are varied . . . ." (citations omitted)); Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9-12 (1978) (property interest in continuation of utility service based on state decisional law permitting termination only for cause); Fuentes v. Shevin, 407 U.S. 67, 86-87 (1972) (property interest in right to possess goods purchased under conditional sales contract where title still remained with seller). But see, e.g., Leis v. Flynt, 439 U.S. 438 (1979) (per curiam) (right of an out-of-state lawyer to appear pro hac vice in state court is not a property interest protected by the due process clause); Bishop v. Wood, 426 U.S. 341, 343-47 (1976) (no property interest in employment, notwithstanding classification as "permanent employee").
Occasionally the Court will protect an interest without pinning a label on it. See Bell v. Burson, 402 U.S. 535, 539 (1971) ("Suspension of issued [driver's] licenses thus involves state action that adjudicates important interests of the licensees [thereby implicating the due process clause].").

[FN96]. Note the protection of government entitlements that are commonly thought of as the "new property." See L. Tribe, supra note 88, at 685-86.

[FN97]. This approach is no more than an application of the common-law method to a broader set of "precedents." In the application of this method hopefully some insights will be generated as to what underlying characteristics define this broader category of property.

[FN98]. 63A Am. Jur. 2d Property § 1 (1984) ("As a matter of legal definition, 'property' refers not to a particular material object but to the right and interest or domination rightfully obtained over such object . . . .").

[FN99]. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003 (1984) (implicitly accepting bundle of rights theory of property); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) ("Physical occupation of another's property . . . chops through the bundle, taking a slice of every strand"); see also Matthews, supra note 5, at 195 ("If, on the other hand, 'property' in those contexts [the Theft Act and elsewhere in legal literature] refers to legal rights in relation to particular physical matter, then we must decide whether the legal rights need amount to full ownership in the commercial sense (when human tissue will not be 'property'), or whether a bundle of legal rights affecting human tissue and amounting to anything less than full ownership in the commercial sense will do.").

[FN100]. See Note, supra note 16, at 218; see also Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88 Colum.L.Rev. 1667, 1667 (1988) ("classical liberal conception of property embraces a number of broad aspects or indicia, often condensed to three: the exclusive rights to possession, use, and disposition").

[FN101]. The most obvious means of subdivision would be along the time axis, as with leases.

[FN102]. Radin, supra note 100, at 1676.

[FN103]. See R. Epstein, Takings: Private Property and the Power of Eminent Domain 35-104 (1985) (prima facie takings include both partial restrictions and total confiscations of property).

[FN104]. Cf. B. Ackerman, Private Property and the Constitution 1-5 (1977) (ordinary observer approach contrasted with scientific policymaker approach).

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